F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision22 October 2020

Decision of the Dispute Resolution Chamber

passed on, 22 October 2020

regarding an employment-related dispute concerning the player Gafar Adefolarin Durisnmi

COMPOSITION:

Clifford J. Hendel (USA & France), Deputy Chairman

Angela Collins (Australia), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

Gafar Adefolarin Durisnmi, Nigeria

Represented by Pakkamol Siriwat

RESPONDENT:

Trat FC, Thailand

Represented by Mitsara Suwannawin

I. Facts

1. On 27 December 2019, the Club and the PIayer concluded an employment contract valid as from 1 January 2020 unti1 31 October 2020.

2. According to art. 2 of the contract, the player was entitled to a salary of THB 400,000 per month, payable by no later than the 5th days of the next month.

3. In addition, and according to the player, “The Parties also oraIly agreed upon a sign-on fee, of which Thai Baht 100,000 is still outstanding.”

4. On 14 April 2020, the Thailand Football Association announced that the Thai League competition season 2020 had been postponed until September.

5. According to the player, on 30 April 2020, the club offered him to terminate the contract, and presented him a termination agreement draft, which he refused to sign, stating the following:

6. “Trat Football Club will compensate for Mr Gafar Adefolarin Durosinmi Total amount is 400,000 Baht to be paid on 30th April 2020. There wilI be no lawsuits. Claim any benefits."

7. On 16 June 2020, the legal representative of the player sent a default notice to the club including the following:

“We have been informed that Trat FC has faiIed to pay the pIayer his saIaries of April and May 2020. In addition, we have been informed that an amount of Thai Baht 100,000 is still outstanding in relation to the pIayer’s sign on fee. We further note that you sent the player a ′”Contract cancellation”, which however the player has not signed as the terms of said contract were not acceptable for the player.

(…)

We kindIy ask you to pay the player within the next 15 days his salaries for April and May2020 as well as the Thai Baht 100,000 related to the sign on fee.”

8. On 7 July 2020, the player sent another default notice, with the following contents:

“PIease note that this Ietter serves as a final warning for your Club to pay Mr Durosinmi the totaI amount of Thai Baht 1,300,000 consisting of Thai Baht 400,000 for each of the months of April, May and June 2020 as well as Thai Baht 100,000 for the outstanding part of the sign on fee.

Please note that should you not pay the reIevant amount to Mr Durosinmi within the next 7 days, the contract may be terminated invoking just cause with all ensuing legal consequences."

9. On 7 August 2020, the legal representative of the player sent a termination letter to the club

“PFA would like to thank Trat FC for its invoIvement in trying to find a way to resolve the contract dispute between Mr Gafar Adefolarin Durosinmi and Trat FC over recent months. However, as the two partiess have been unable to reach an agreement, [the PFA] wishes to remind you that as a foreign sportsman [the player] has the right to proceed as per his wishes in accordance with the FIFA ReguIations on the Status and Transfer of PIayers (RSTP) (…)

Mr Durosinmi has informed (…) that he wishes to exercise the right to terminate the contract with Trat FC in accordance with the RSTP.”

10. The player informed FIFA that, on 10 August 2020, he concluded an employment contract with the Thai club, Prachuap FC, with the following conditions:

“Chapter 3: Duration of the contract

This agreement is effective from the date 15st August 2020 until 1st half of 2020 season and have option to extend contract until the end of 2020 season.

Chapter 4: Remuneration The company will pay the athlete the following remuneration:

A. The salary will be 200,000 (two hundred thousand) THB net after tax per month. And the club will pay 50% of August salary.

B. Signing fee 150,000 baht net”.

11. On 14 August 2020, the player lodged a claim before FIFA for breach of contract without just cause and requested the payment of the following amounts:

- THB 1,600,000 net as outstanding salaries for the months of April to July 2020 (i.e. 4 months), plus 5% interest p.a. as from the due dates;

- THB 1,200,000 net as compensation for breach of contract, plus 5% interest p.a. as from the date of termination of the contract;

- THB 100,000 as outstanding remuneration for the “oral agreement” regarding the sign-on fee, plus 5% interest p.a. as from the date of termination;

12. According to the player, “it is clear that [his] confidence in the future performance of the contract was Iost on 7 August 2020 and that he had a just cause to terminate the contract, Since the CIub repeatedly failed to pay the Player his financial entitIements and despite various reminders, the Club did not remedy the breaches;”

13. In its reply to the claim, the club explained that, in view of the COVID-19 pandemic, all Thai clubs agreed to temporarily reduce 50 percent of their employees (players and coaches), in accordance with the national non-mandatory guidelines dated 22 April 2020. The club explained that, in accordance with the guiding principles established in the COVID-19 Football Regulatory issues, the Club and employees (players and coaches) worked together to find appropriate collective agreements on the club and league basis regarding employment conditions for the aforementioned period while considering the financial impact of COVID-19 on clubs.

14. Within this context, the club acknowledged that the player appeared to be “unhappy”, but invited “to understand that solutions must be found with everybody’s contribution while we are in such a significant social crisis.”

15. The club acknowledged that it held conversations to mutually terminate the contract, but that they ultimately failed to succeed.

16. According to the club, the player had his last training on 6 May 2020 and left afterwards. In support of said allegation, the club referred to the following hyperlink: https://www.facebook.com/tratfc2012/videos/2619952101593949/?vh=e&extid=9z843LRAPaL4yk1t .

17. Furthermore, the club explained the letter of 7 July 2018 as provided by the player is “translated [from Thai] in bad faith”.

18. As to the requested outstanding salaries, the club stated that “we did our best” and that the player’s salaries until March 2020 we paid in time. However, the club underlined that during COVID-19 outbreak, the agreement could not be performed as the parties originally anticipated.

19. Concerning the requested compensation, the club was of the opinion that “the misbehavior of the player should be taken into account.” Particularly, the club underlined that the player was absent after 6 May 2020”.

20. As to the claimed bonus, the club underlined that the player himself acknowledged that it was an “oral agreement” and thus, failed to meet his burden of proof.

21. Concerning the plane ticket amounts, the club “noted that no amount was provided in the employment contract as well as no due date.”

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the current one, which involves a Nigerian player and a Thai club.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 14 August 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber noted that the parties concluded an employment contract valid as from 1 January 2020 until 31 October 2020.

6. Subsequently, the Chamber observed that the player lodged a claim, by means of which he argued that, after having put the club in default of payment on 16 June 2020 and 7 July 2020, he terminated the contract with just cause on 7 August 2020.

7. Conversely, the Chamber noted that the club the club stated that it did its best to pay the player’s remuneration until March 2020, but that in view of the COVID 19 outbreak, the agreement could not be performed as the parties originally anticipated.

8. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

9. In this respect, the Chamber observed that the player served two default notices to the club before terminating the contract, respectively on 16 June 2020 and 7 July 2020, before terminating the contract on 7 August 2020. Thus, the Chamber understood that, from this point of view, the Claimant granted sufficient time to remedy the alleged default of payment.

10. Thereafter, the Chamber acknowledged that the Respondent implicitly acknowledged its debt, as it noted that, in view of the COVID-19 pandemic, all Thai clubs agreed to temporarily reduce 50 percent of their employees (players and coaches), in accordance with the national non-mandatory guidelines dated 22 April 2020.

11. In this respect, however, and although understanding the difficulties arisen from the aforementioned situation, the Chamber understood that, in any case, the Respondent did not provide that it made an effort to at least pay the player’s remuneration in a partial manner, i.e. after the alleged deduction of 50%.

12. In view of the above, the Chamber considered, without entering into the merits of said alleged deductions, that the club failed to remunerate the player since April 2020, even in a partial manner. The Chamber considered that said absolute non remuneration of the player constitutes a breach of contract without just cause.

13. Moreover, the Chamber further took note of the club’s argument, according to which the player was absent after 6 May 2020.

14. In this respect, the Dispute Resolution Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

15. In relation to said absence, the DRC noted that the player supported said argument with a video from a training.

16. Yet, after duly examining the contents of said document, the DRC understood that it is not conclusive to establish any absence from the player. Thus, the DRC considered that the club failed to meet its burden of proof and consequently rejected the club’s argument in this respect.

17. In view of the above, the DRC unanimously concluded that the club failed to pay the player’s remuneration, even in part, from April to July 2020, i.e. 4 months. Therefore, the Chamber considered that the Respondent seriously neglected its financial obligations towards the Claimant. Thus, in accordance with the longstanding jurisprudence of the DRC, the Chamber established that the player had just cause to terminate on 7 August 2020.

18. In view of the above, the DRC considered that the club shall be liable for the early termination of the contract. However, before entering into the consequences of said termination, the Chamber understood that, in addition to compensation, the player is entitled to the payment of his outstanding dues until the termination of the contract.

19. Thus, the Chamber understood that, from April to July 2020, the player was entitled to the four monthly salaries of THB 400,000 each, i.e. THB 1,600,000.

20. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber decided that the Respondent shall pay to the Claimant the total amount of THB 1,600,000 as outstanding remuneration for the aforementioned period.

21. Moreover, taking into account the jurisprudence of the DRC in this respect, the Chamber decided to award 5% interest p.a. over said amount as from the respective due dates.

22. In continuation, the DRC decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevamt employment contract.

23. As a result, the DRC went on to examine the (financial) consequences of the early termination of the contract and, in particular, the calculation of the payable compensation.

24. In this context, the DRC outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. The DRC further noted that, following art. 17 par. 1 of the Regulations, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

25. In application of the relevant provision, the DRC held that it firstly had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

26. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC pointed out that at the time of the termination of the employment contract, the contract would run 31 October 2020, for which the player would still have to receive three monthly salaries of THB 400,000, a. As a result, the DRC considered that the amount of THB 1,200,000 (i.e. 400,000*3) shall serve as the basis for the calculation of the payable compensation.

27. In continuation, the DRC verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with Claimant’s general obligation to mitigate his damages.

28. In this respect, the DRC took note that, on 10 August 2020, the player concluded an employment contract with the Thai club, Prachuap FC, with the following conditions:

“Chapter 3: Duration of the contract

This agreement is effective from the date 15st August 2020 until 1st half of 2020 season and have option to extend contract until the end of 2020 season.

Chapter 4: Remuneration The company will pay the athlete the following remuneration:

A. The salary will be 200,000 (two hundred thousand) THB net after tax per month. And the club will pay 50% of August salary.

B. Signing fee 150,000 baht net”.

29. Consequently, the Chamber observed that, during the overlapping period and until 31 October 2020, the player would have earned the total amount of THB 650,000.

30. Therefore, and at this stage, the Chamber noted that the mitigated compensation would correspond to THB 550,000 (i.e. 1,200,000-650,000).

31. Thereafter, the Chamber referred to the contents of art. 17 par. 1 ii of the contract, according to which, and subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three monthly salaries (the “Additional Compensation”).

32. Thus, in view of the aforementioned provision, the Chamber established that, in addition to the mitigated compensation of THB 550,000, the player would be entitled to three additional salaries, corresponding to THB 1,200,000 (i.e. 400,000*3), leading to a potential compensation of THB 1,750,000.

33. Yet, in this respect, the Chamber further noted that, following the aforementioned provision, the overall compensation may never exceed the rest value of the prematurely terminated contract.

34. Therefore, considering that the residual value of the contract, as mentioned above, amounted to THB 1,200,000, the Chamber established that said amount shall correspond to the total payable compensation.

35. As a consequence, and bearing in mind the above, the Chamber concluded by deciding that the Respondent has to pay the total amount of THB 1,200,000 to the Claimant, as compensation for breach of contract, which it considered as reasonable and justified in the light of the applicable jurisprudence and regulations.

36. Furthermore, in accordance with its longstanding jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said amount as from the date of the claim.

37. Subsequently, the Chamber went on to examine the Claimant’s request to be awarded with THB 100,000 as outstanding remuneration for the “oral agreement” regarding the sign-on fee.

38. In relation to said request, the Dispute Resolution Chamber referred once again to contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

39. In this respect, the Chamber considered that no conclusive evidence was provided as to the existence of the alleged “oral agreement”, and therefore rejected this part of the Claimant’s request.

40. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

41. In this regard, the Dispute Resolution Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

42. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

43. Finally, the Dispute Resolution Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Gafar Adefolarin Durisnmi, is partially accepted.

2. The Respondent, Trat FC, has to pay to the Claimant, the following amount:

- THB 1,600,000 as outstanding remuneration plus 5% interest p.a. as from the due dates until the date of effective payment.

- THB 1,200,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 14 August 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777